San Diego Border Infrastructure Environmental Litigation: Return of the Walking Dead

Document Type


Publication Date

Winter 2020



The Secretary of Homeland Security waived numerous environmental laws in 2017 that allowed the construction of new barrier fences and border wall prototypes on the U.S.–Mexico border in California. The Federal district court and Ninth Circuit upheld the Secretary’s waivers in In re Border Infrastructure Environmental Litigation. This Article argues that the federal courts’ decisions were erroneous because the waivers were ultra vires and unconstitutional. The Secretary’s waiver authority was limited to the border fencing specifically authorized in the Immigration Reform and Immigrant Responsibility Act. This fencing was completed in 2013. At this point the Secretary’s waiver authority ended, so the 2017 waivers were ultra vires. Furthermore, the Secretary’s waiver authority was unconstitutional. The unlimited scope of the waiver authority and constrained judicial review violated the non-delegation doctrine. Congress should terminate the Secretary’s waiver authority and enact legislation that balances national security and environmental protection along the border.

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